Are Qualified Patients Unqualified Parents?
A lack of case law regarding medical marijuana use (due to Missouri’s very recent legalization), combined with courts’ broad judicial discretion to determine matters related to child custody and placement, has temporarily left qualified Missouri parents—parents with state-issued medical marijuana licenses—in a state of limbo.
Notwithstanding the present legal unpredictability, secondary sources and persuasive cases outside Missouri indicate that qualified parents may continue their use of medical marijuana if they do so within the parameters of 19 CSR 30-95.030 and Article XIV of the Missouri Constitution and do not endanger their children through such use.
A qualified parent wishing to maintain custody or unsupervised visitation must show the court, to the best of his or her ability, their marijuana use in no way risks harm to their child’s life, health, welfare, or emotional well-being. In doing so, parents can demonstrate that their medicinal use should not weigh against them in the court’s evaluation of the child’s best interests as set forth in RSMo § 452.375. Qualified patients can continue their responsible use of medicinal marijuana without automatically being labeled unqualified parents—that is, at least until Missouri courts provide a clear answer otherwise.
Despite the plethora of evidence supporting marijuana’s legitimate medicinal uses1 it remains an illegal Schedule I drug under federal law.2 In other words, the government expressly characterizes marijuana as a drug with “no currently accepted medical use.”3 Many individual states, however, have been receptive to marijuana’s growing role in the medical field.4 Currently, thirty-three states and the District of Columbia permit marijuana use for medical purposes.5 Of those thirty-three states, only eleven presently allow recreational use.6
A. Qualified Patient Designation
The legal definition of “medical marijuana” differs between states with regard to the permissibility of cultivation, approved amounts of possession or use, and the applicability to minors.7 Similarly, states have different thresholds for licensure, but statutes generally require—to use the varied terminology applied by the states—(1) a doctor “recommendation,” “approval,” or “certification”; and/or (2) evidence of a “serious,” “severe,” “debilitating,” “qualifying,” or “approved” medical condition.8 Persons who meet a state’s eligibility criteria are called “qualified patients.”9 Parents who have a legal right to use medical marijuana in their respective states have been dubbed “qualified parents.”10
In Missouri, per Article XIV of the state constitution, qualifying medical conditions include: cancer, epilepsy, glaucoma, intractable migraines, chronic conditions that cause severe pain or persistent muscle spasms,11 debilitating psychiatric disorders,12 HIV and AIDS, chronic conditions typically treated with dependence-inducing prescription medications, terminal illnesses, ALS, inflammatory bowel disease, Crohn’s disease, Huntington’s disease, autism, various neuropathies, sickle cell anemia, certain cases of Alzheimer’s disease, and wasting syndrome.13
B. Permissible Use
Missouri dispensaries, 192 in total, are expected to open in 2020, with estimates ranging from February through July.14 Presently, there is no legal way to buy or sell marijuana in the state.15 In response to the confusion surrounding the legality of possession,16 the Department of Health and Senior Services’ Director of Medical Marijuana, Lyndall Fraker, recently released an official letter17 to Missouri law enforcement stating the following:
[I]t was inevitable the individuals would be authorized for the medical use of marijuana before any business would be licensed to operate as a dispensary. . . . Naturally, these circumstances have given rise to the question of whether medical marijuana patients may possess medical marijuana in the months between when they were authorized and when dispensaries begin operating. . . . Article XIV [of the Missouri Constitution] establishes a right to possess and use medical marijuana once approved by DHSS . . . and never specifies that these patient rights are only applicable after dispensaries are operating. . . . [In other words,] once in possession of marijuana, all of the rights and protections outlined in Article XIV apply without caveat. . . . [I]t is the opinion of DHSS that, pursuant to Article XIV, individuals who hold a valid medical marijuana identification card are currently authorized to possess and use medical marijuana, and the lack of a mechanism by which those individuals may legally come into possession of medical marijuana does not change their right to possess it.18
In essence, DHSS has authorized law enforcement to ignore the illegal means by which qualified patients are acquiring marijuana in the interim; as long as they are in compliance with the statutorily-established limit of four ounces of dried marijuana per thirty-day period, qualified patients may possess and use marijuana regardless of the source from which it was obtained.19 At the time of Fraker’s letter, over 30,000 Missouri residents had already obtained their medical marijuana licenses.20 In addition to possessing and using marijuana, qualified patients can obtain an additional license that permits in-home cultivation of up to six plants.21
C. Protections for Qualified Parents
Most state medical marijuana statutes protect qualified patients from criminal charges.22 Despite widespread decriminalization, only ten states have statutory provisions in place specifically to protect qualified parents from a loss of custody or visitation rights as a result of legal marijuana use.23 These states include Arizona, Delaware, Hawaii, Illinois, Maine, Michigan, Minnesota, New Hampshire, New York, and Washington.24
In states without statutory family-law protections, such as Missouri, legal uncertainty has forced qualified parents to either discontinue their marijuana use upon order of the court—regardless of the resulting physical or psychological consequences—or engage in fact-intensive custody battles in which continued marijuana use could affect child placement.25 In the past, courts have ordered marijuana-smoking parents to submit to random drug testing, participate in drug rehabilitation programs, and/or accept restricted visitation in order to prove parental fitness.26
III. Case Law
In 1996, the Compassionate Use Act (also known as Proposition 215) legalized medical marijuana in the state of California.27 Over twenty years later, in 2018, Missouri legalized medical marijuana.28 Missouri has yet to render a holding clarifying whether qualified parents must choose between their right to use medicinal marijuana and their right to parent without state interference.29 California, however, has adjudicated numerous cases on point and, although they are not binding on Missouri courts, the opinions are persuasive. Washington and Colorado, which legalized medicinal use in 1998 and 2000, respectively, also provide relevant case law.
In In re Alexis E. v. Patrick E,30 the Department of Children and Family Services received reports that three children, ages ten, seven, and six, were being emotionally abused by their father, Patrick. The children lived with Patrick until he was convicted of domestic violence against his girlfriend and incarcerated, at which point the children moved in with their mother, Cynthia, who had also been a victim of Patrick’s abuse. Physicians confirmed Patrick’s diagnoses of depression and several other psychiatric conditions, indicated he was on prescription medications, documented marijuana use beginning in high school, and recommended he try medical marijuana. Patrick alleged his use of marijuana was necessary to treat his knee pain and anxiety.
During the pendency of the case, Patrick refused to participate in programs suggested by the social worker or enroll in a drug treatment plan, made at least two unfounded referrals against Cynthia, and called the police three times and demanded the children be removed from her home. Interviews with the children indicated that Patrick would leave them without supervision, smoke in their presence, and often lose his temper. As a result, the social worker concluded that Patrick’s marijuana use created a dangerous environment for the children, and the trial court ruled accordingly.
On appeal, the California Appellate Court affirmed. Patrick was legally within his rights to use medicinal marijuana, but “even legal use of marijuana can be abuse if it presents a risk of harm to minors.” The court opined that the children had experienced real—as opposed to speculative—trauma, stress, and damaging exposure as a result of Patrick’s marijuana use. For example, Patrick smoked with the children in his home, which caused them to worry about his health, regularly exposed them to second-hand smoke, and negatively impacted his demeanor towards them. The court also noted that Patrick’s use of marijuana began long before a physician recommended he use the drug for medical purposes, and such use was both illegal and indicative of a history of substance abuse. The court agreed with Patrick’s assertion that “medical marijuana use, without more,” was insufficient for the court to interfere with his parental rights but simultaneously pointed out that (1) the other evidence established the “more” needed, and (2) the manner in which he had used marijuana was a threat to his children’s health and safety.
In In re Drake M. v. Paul M.,31 the Department of Children and Family Services (“DCFS”) received a referral stating that Paul, the father of nine-month-old Drake, used marijuana to the detriment of Drake’s welfare and safety. Upon investigation, Paul admitted to using marijuana three or four times each week to treat his arthritis and persistent knee pain per a physician’s recommendation. Numerous witnesses, including Paul, testified that Paul never smoked inside the home or in Drake’s presence, and Drake was supervised by relatives during, and at least four hours after, Paul’s marijuana use. Paul further testified that the marijuana was stored in a lock box on a high shelf in the garage where it was inaccessible to Drake. Nevertheless, DCFS contended that Paul’s failure to alleviate his drug abuse problem put Drake “at a risk of serious physical harm.” Accordingly, the trial court required Paul to submit to weekly drug tests, attend parenting courses, and undergo drug counseling.
The California Appellate Court reversed on appeal. The court distinguished between substance use and substance abuse, noting that a parent’s drug use—even recurring positive drug screens—could not alone justify juvenile court jurisdiction. In addition, the court held that DCFS failed provide adequate evidence of any past harm or present risk to Drake. Specifically, there was no evidence Paul drove or supervised Drake while under the influence of marijuana, no evidence that Drake was exposed to marijuana or second-hand smoke, and no evidence that Paul’s use of medical marijuana put Drake in harm’s way. To the contrary, evidence indicated that Drake was “well cared for.” Thus, DCFS did not meet its burden.
Following dissolution proceedings in In re Marriage of Parr,32 Catherine and David entered into a signed parenting agreement governing the conditions of David’s visitation. Namely, David agreed to submit to ongoing urinalysis tests to demonstrate that he was not using marijuana. Later the same day, David learned that he had been approved for a medical marijuana license to treat the chronic pain from a past injury. Thereafter, David petitioned, unsuccessfully, to waive the urinalysis requirement. The court reasoned that he had “voluntarily and knowingly signed the parenting plan.” When David did not provide Catherine with proof of clean drug screens, she petitioned to restrict his parenting time. The trial court subsequently modified the parenting agreement by mandating David’s visitation be supervised, a condition that did not appear in the original agreement.
The Colorado Court of Appeals affirmed the trial court’s first order upholding the urinalysis requirement but vacated the trial court’s second order modifying David’s visitation from unsupervised to supervised time. The opinion noted such a modification was improper because there was insufficient evidence that a lack of supervision “represented a threat to the physical and emotional health and safety of the child, or otherwise suggested any risk of harm.” In other words, because Catherine did not prove David’s medical marijuana use constituted endangerment, such use could not be the sole basis for a restriction of parenting time.
After Cameron and Desire divorced in In re Marriage of Wieldraayer,33 the court granted Desire physical custody of the pair’s two daughters. Out of concern for the girls’ safety due to Cameron’s use of medical marijuana, Desire sought and was granted an order requiring that Cameron’s visitation be supervised. Cameron appealed the order, arguing that his parental rights could not be restricted based on his status as a qualified patient.
The Court of Appeals of Washington affirmed. The court indicated its evaluation was based not on whether Cameron’s marijuana use was legal or illegal, but whether his use was “detrimental to his young daughters.” Evidence demonstrated that Cameron had used marijuana recreationally “for its intoxicating effects” well before he obtained a medical marijuana license. Further, there was evidence Cameron had allowed the girls to sniff paraphernalia while he smoked, and he did not make good on his promise to quit despite numerous admonitions by the court.
Though there is not yet case law on point passed down from Missouri courts, relevant cases from California, Colorado, and Washington seem to indicate that the custody inquiry—both in general and as it relates specifically to medical marijuana use—is highly fact intensive.34 Ultimately, Missouri law gives judges wide discretion, leading to a very subjective analysis and, consequently, subjective decisions.
Reasonable minds differ, as even legal, judicial, and mental health communities disagree about what the child’s best interests are for a custody battle. . . . The difficultly [sic] of determining what truly is the best interest of a child coupled with the wide judicial discretion the standard calls for, creates an overwhelming amount of unpredictability for parents. . . . [T]he result of a child custody case involving medical marijuana largely depends on whether the people involved, Child Protective Services, judges, and attorneys have biases against parents who use marijuana, even for medical purposes.35
In spite of the apparent lack of objectivity, marijuana use is not determinative, and courts outside of Missouri seem to adhere to the widely-accepted “best interests” test even when parental marijuana use is at issue. Therefore, when the time comes, Missouri courts should be focused less on if a parent is using marijuana and more on how and when they choose to do so. Missouri’s best interests test, set forth in RSMo § 452.375.2, requires courts to determine custody in accordance with the best interests of the child considering all relevant factors36 including:
The wishes of the child’s parents as to custody;
The ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
The interaction and interrelationship of the child with parents or siblings;
Which parent is more likely to allow the child meaningful contact with the other parent;
The child’s adjustment to home, school, and community;
The mental and physical health of all individuals involved, including any history of physical abuse of any individuals involved;
The intention of either parent to relocate the principal residence of the child; and
The wishes of a child as to the child’s custodian.37
Thus, in applying the factors of the best interests test to a qualified parent, courts will examine his or her ability to competently parent or, in the words of the applicable statute, “perform their functions as mother [or] father.”38
Essentially, courts will make a determination about whether or not the child has been or is likely to be harmed as a result of a parent’s marijuana use, i.e., whether the use has put a child in danger.39 Plainly stated, “in order for a juvenile court to restrict parental rights because of a parent’s legal medical marijuana use, there must be a finding that this drug use endangers the child. . . . [W]ithout such a finding of endangerment, a decision to restrict parental rights because of a parent’s use of medical marijuana cannot be upheld.”40 Qualified parents should, therefore, be prepared to make a case that they have never: (a) used marijuana in the presence of their children; (b) supervised their children or operated a motor vehicle while under the influence of marijuana; (c) stored their marijuana in a location that is easily accessible to a child;41 or (d) exposed their children to secondhand marijuana smoke (especially if exposure may exacerbate a child’s existing health problems).42 Qualified parents are advised to “be ready to show a strong pattern of competent, child-focused parenting along with evidence that [their] consumption of marijuana has never endangered [their] child.”43
Conversely, parents attempting to limit visitation of their child’s other parent based on his or her legal or illegal marijuana use must provide credible, specific evidence that such use “endangers the child’s physical health or emotional development.”44 Note that actual harm is not necessary; the inquiry revolves around whether a particular behavior or incident could have led to harm.45 “Generally, courts will not punish a caregiver for making a simple mistake or misjudgment, but will look to whether the caregiver placed the child in a situation that more likely than not exposed the child to harm.”46 Note that in both Alexis and Wieldraayer, there was sufficient evidence to support a finding that the fathers’ marijuana use posed a risk to their children.
In addition, courts seem to take note of marijuana use occurring before a parent becomes a registered cardholder; a history of substance abuse weakens a qualified parent’s argument that their marijuana use does not impede their ability to competently parent, regardless of whether their use is now “legal.” Again, note that in Alexis and Weildraayer, both fathers had a history of substance abuse. In Missouri, previous convictions do not preclude an individual from obtaining a medical marijuana license, but certain offenses occurring after issuance—e.g., violations of RSMo 579.020 (delivery of a controlled substance), 579.065 (trafficking drugs, first degree), or 579.068 (trafficking drugs, second degree), or similar laws of other states—can lead to permanent revocation.47
Some proponents of legalization have likened marijuana use to drinking alcohol.48 That is, alcohol consumption is legal for adults, but a parent’s alcohol use or abuse can still justify state intervention if it is putting children at risk.49 Even legal substances must be used in a manner that does not impair a qualified patient’s ability to parent or endanger his or her children.50
Some helpful tips for qualified parents include:
Avoid using marijuana prior to receiving your official medical marijuana license;
Consider exhausting all other medication and treatment options before turning to medical marijuana;
Keep marijuana out of plain sight, out of your child’s reach (with other prescription medications), and in a clearly labeled container;
If you also hold a cultivation license, keep plants in a locked or fenced-off area your child cannot enter (and avoid any potential fire hazards posed by certain grow equipment);
Do not medicate in your child’s presence, while supervising your child, or within the several hours prior to interacting with your child;
Never operate a vehicle after medicating, especially with your child in the car;
If your child is of sufficient age to recognize or identify marijuana, carefully explain that it is a prescribed adult medication and, just like any other prescription, they should not touch it;
Smoke outdoors to prevent the possibility of exposing your child to lingering second-hand smoke;
Even though it is legal, refrain from advertising your marijuana use;
Keep record of the precautions you take to eliminate any potential risks posed by your marijuana use to counter any future allegations of child endangerment.51
The abovementioned actions can help qualified parents protect themselves from the hardships associated with custody battles while allowing them to responsibly continue their medicinal marijuana use—at least until Missouri courts provide the qualified patient population with a clear answer
 Marka B. Fleming & Gwendolyn McFadden-Wade, The Unthinkable Choice: The Constitutional Due Process Right to Parent or The Legal Right To Use Medical Marijuana, 25 B.U. Pub. Int. L.J. 299, 306-07 (2016) (noting that marijuana is used in the treatment of a wide range of both chronic and acute illnesses, most commonly those including persistent pain, nausea, and uncontrolled movement).
 Id. at 307 (hypothesizing this longstanding classification might be a result of the belief that marijuana is dangerous, addictive, and may serve as a gateway drug); Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 812 (1970); Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients and Their Families From Discrimination, 28 Hastings Women’s L.J. 119, 126-27 (2017).
 Fleming & McFadden-Wade, supra note 1, at 307.
 Kwak, supra note 2 (“Marijuana seems to be regaining its status as a resource to be used and cultivated for its medicinal properties, just as it was in the nineteenth century. . . . In the last few years, there has been a rapid shift of public opinion and the majority of Americans now favor the legalization of marijuana.”).
 Id. at 119; Zara Stone, Parenting on Pot, Elemental (July 2, 2019), https://elemental.medium.com/parenting-on-pot-8719b38640be.
 Kwak, supra note 2, at 119.
 Id. at 128 (“There is no consensus among states in the amount of marijuana a patient can possess, whether patients are authorized to cultivate their own marijuana for medical use, or whether minors may use medical marijuana.”).
 Fleming & McFadden-Wade, supra note 1, at 308-09.
 Id. at 308-10.
 Fleming & McFadden-Wade, supra note 1, at 300, 311.
 For example, multiple sclerosis, seizures, Parkinson’s disease, and Tourette’s syndrome.
 For example, post-traumatic stress disorder.
 How to Apply—Patient Information, Mo. Dep’t of Health & Human Serv., https://health.mo.gov/safety/medical-marijuana/how-to-apply-pi.php (last visited Feb. 13, 2020).
 Megan Bridgeman, Everything You Need to Know About Medical Marijuana in Missouri, Springfield News-Leader (Jan. 31, 2020), https://www.news-leader.com/story/news/2019/08/08/missouri-medical-marij... =news&utm_term=2984543002.
 Danny Wicentowski, No Matter the Source, Marijuana Patients Can Possess Weed in Missouri, Riverfront Times (Jan. 31, 2020), https://www.riverfronttimes.com/newsblog/2020/01/31/no-matter-the-source....
 Missouri Man Was Approved for Medical Marijuana. Why was he Jailed for Pot Possession?, Kansas City Star (Dec. 11, 2019), https://www.kansascity.com/opinion/editorials/article238260829.html (“[T]he lack of legal clarity surrounding the state’s medical marijuana program has left patients, law enforcement officers and officials in a state of confusion over what constitutes legal possession.”).
 READ: Fraker’s Letter to Law Enforcement, News-Press NOW (Jan. 31, 2020), https://www.newspressnow.com/read-fraker-s-letter-to-law-enforcement/pdf....
 Wicentowski, supra note 15; Matt Hoffmann, Health Department: Pot Possession Now Legal for Cardholders, News-Press NOW (Jan. 31, 2020), https://www.newspressnow.com/news/local_news/health-department-pot-posse....
 READ: Fraker’s Letter to Law Enforcement, supra note 17.
 Medical Marijuana Program Expands as Advocates File Adult-Use Legalization Ballot Initiatives, Marijuana Policy Project (Jan. 13, 2020), https://www.mpp.org/states/missouri/.
 Kwak, supra note 2, at 121.
 Id. at 120.
 Applicable state statutes include: Ariz. Rev. Stat. § 36-2813; Del. Code Ann. 16 § 4905A(b); Haw. Rev. Stat. § 329-125(b); 410 Ill. Comp. Stat. § 130/40(b); Me. Rev. Stat. Ann. 22 § 2423-E(3); Mich. Comp. Laws Ann. § 333.26424(4)(c); Minn. Stat. Ann. § 152.32.3(e); N.H. Rev. Stat. Ann. §§ 126-X:1 and 126-X:2; N.Y. Pub. Health § 3369(3); Wash. Rev. Code Ann. § 69.51A.120.
 Kwak, supra note 2, at 120 (“Parents may be forced to choose between marijuana to alleviate health problems and the retention of custody of their children; in some cases, parents are being forced to choose between living with chronic, debilitating pain and potentially facing a child custody battle or loss of a child to the foster care system.”); Fleming & McFadden-Wade, supra note 1, at 322 (“The courts’ decisions seem to turn on the facts and circumstances.”).
 See, e.g., In re K.M.A.-B., 493 S.W.3d 457 (Mo. Ct. App. 2016).
 Kwak, supra note 2, at 127.
 Marijuana Policy Project, supra note 21.
 Based on a review of all Missouri state cases including the words “marijuana” and “custody.”
 171 Cal.App.4th 438 (2009).
 211 Cal.App.4th 754 (2012).
 240 P.3d 509 (2010).
 Not Reported in P.3d, WL 5331266, No. 59429–0–I (Wash.App. 2008). Following this case, the Washington state legislature adopted Revised Code of Washington § 69.51A.120 which states, in pertinent part: “[a] qualifying patient or designated provider may not have his or her parental rights or residential time with a child restricted solely due to his or her medical use of cannabis in compliance with the terms of this chapter absent written findings supported by evidence that such use has resulted in a long-term impairment that interferes with the performance of parenting functions as defined under RCW 26.09.004.”
 Fleming & McFadden-Wade, supra note 1, at 322.
 Kwak, supra note 2, at 134-35, 137.
 See RSMo § 452.375.2 (2005) (abridged and emphasis added).
 Fleming & McFadden-Wade, supra note 1, at 322 (“A thorough reading of the cases leads to the supposition that parents are more likely to prevail if the evidence supports a conclusion that the child is not harmed or likely to be harmed by the marijuana use.”).
 Id. at 324.
 Jose Rivera, How Marijuana Affects the Best Interests of the Child, Legal Match (July 25, 2019), https://www.legalmatch.com/law-library/article/marijuana-and-child-custo... Fleming & McFadden-Wade, supra note 1, at 323; Child Custody, Ams. for Safe Access, https://www.safeaccessnow.org/ca_child_custody (last visited Feb. 14, 2020).
 Kathleen Hoke Dachille & Kristine Callahan, Secondhand Smoke and the Family Courts: The Role of Smoke Exposure in Custody and Visitation Decisions, Tobacco Control Legal Consortium (2005), https://www.publichealthlawcenter.org /sites/default/files/resources/tclc-syn-family-2005.pdf; see also David Malleis, The High Price of Parenting High: Medical Marijuana and Its Effects on Child Custody Matters, 33 U. La Verne L. Rev. 357, 382 (2012).
 Edra J. Pollin, Medical Marijuana Lights Up Child Custody Court, HuffPost (Nov. 25, 2011), https://www.huffpost.com /entry/medical-marijuana-lights-_b_974848?guccounter=1.
 Rivera, supra note 41.
 Rules of Department of Health and Senior Services Division 30—Division of Regulation and Licensure Chapter 95—Medical Marijuana, 19 CSR 30-95 (Dec. 31, 2019), https://www.sos.mo.gov/CMSImages/AdRules/csr/current/19csr/19c30-95.pdf; see also Frequently Asked Questions for Patients, Mo. Dep’t of Health & Senior Serv., https://health.mo. gov/safety/medical-marijuana/faqs-patient.php.
 Chad Dean, Mass Appeal, SPLIMM (Nov. 22, 2016), https://splimm.com/2016/11/22/mass-appeal/ (“It’s common sense – if parents are using marijuana responsibly, they should be left alone just like parents who use alcohol responsibly.”).
 Malleis, supra note 42, at 381-82.
 Dean, supra note 48 (“If cannabis, like alcohol or gambling, is putting someone at risk, the Department of Children and Families can intervene.”).
 Ams. for Safe Access, supra note 40.